The Civilian Reservist Emergency Workforce (CREW) Act of 2021 was signed into law by the President on September 29, 2022. The CREW Act amends the Robert T. Stafford Disaster Relief and Emergency Assistance Act and the Uniformed Services Employment and Reemployment Rights Act (USERRA) to protect civilian employment of FEMA reservists when deployed on FEMA's behalf during disasters and emergencies or be trained for it. The new law also protects FEMA reservists from discrimination by an employer based on membership, application for membership, and/or service as a FEMA reservist.
Please visit the Department of LaborKnow your USERRA Rights websitefor a full explanation of rights and protections under USERRA.
frequently asked Questions
What protections do reservists get under the CREW Act?
CREW law expands USERRA to include FEMA reservists. USERRA was enacted to ensure that members of the uniformed armed forces have the right to return to civilian employment after their service has ended. FEMA reservists were to be reinstated with the seniority, status, and pay rate they would have received had they remained continuously employed by their civilian employer. The law also protects individuals from discrimination in hiring, promotion and retention based on their current and prospective membership in the uniformed services. The definition of "uniformed services" includes the Armed Forces, Army National Guard and Air National Guard, Public Health Service (PHS) Corps of Corps and National Oceanic and Atmospheric Administration (NOAA), members of the National Disaster Medical Service (NDMS), Members of the National Urban Search and Rescue (USAR) System and now, due to the CREW Act, FEMA Reservists.
What does this mean for reservists?
In essence, passage of the CREW Act means that reservists who are dispatched to a Stafford Act event cannot lose their sideline employment as a result of their work with FEMA. You can also take the time to train for such operations. In addition, as reservists they are protected against discrimination in the workplace.
Which employers does this law apply to?
The law applies to ALL employers, both public and private, regardless of their size. This includes foreign employers doing business in the United States and American companies doing business abroad. Please refer20 C.F.R. § 1002.34.
Can a reservist also hold a state, federal, or private sector entity that interacts with FEMA?
Yes, provided the employment is approved in writing by FEMA's Office of Chief Counsel and your manager prior to commencement of outside employment. You can find the "External Employment" form hereHereor contact your Cadre management team. This permit is not required for military service.
What types of employment does USERRA protection apply to?
USERRA protects all employee types, including senior, managerial and professional employees. See20 C.F.R. § 1002.43.
In addition, the regulation also applies to temporary workers, part-time workers, trial workers and seasonal workers. USERRA rights are not diminished because an employee is employed on a temporary, part-time, probationary or seasonal basis. However, an employer is under no obligation to reinstate an employee if the employment he or she left to serve in the uniformed services (including reservists) was for a short, non-recurring period and there is no reasonable expectation that the employment relationship would have been continued indefinitely or for a significant period of time. The burden of proof for this positive objection lies with the employer. See20 C.F.R. § 1002.41.
However, USERRA does not apply to independent contractors. See20 C.F.R. § 1002.44.
Does USERRA protect against discrimination when first hired?
Yes. An employer need not actually hire a reservist as his “employer” under USERRA if he has declined initial employment because of his membership, application for membership, service, application for service, or commitment to service in the uniformed services (including FEMA). If a company withdraws an offer of employment because the reservist is called to work, the company that withdraws the offer of employment is also considered an employer for the purposes of USERRA. See20 C.F.R. § 1002.40.
What do reservists have to do to be able to return to their jobs after a deployment?
To be eligible for re-enlistment after deployment, reservists must meet the five conditions defined below. See20 C.F.R. § 1002.32.
The reservist must:
- hold a civilian job;
- You have given the civilian employer written or verbal notice prior to resigning for Reservist training or Reservist deployment, except where prohibited by FEMA necessity;
- have not exceeded the 5-year cumulative service limit (note: this is per employer);
- were discharged from service under conditions other than dishonorable conditions for military reservists and Guardsmen (note: FEMA determines how this applies to reservists); And
- Report back to civilian work or apply for reinstatement in a timely manner (requirements for timely reinstatement are discussed below).
What does "cancel" mean?
Reservists must notify the employer of this in advance, in writing or orally. See20 C.F.R. § 1002.85. The law does not specify how much advance notice is required, but FEMA and the Department of Labor advise reservists to give their employers as much advance notice as possible under the circumstances.
In practice, this means that the reservist will give his employer aOnce they have accepted their provisioning request, this will be done as soon as possible. Advance notice can be given 24 hours or 4 days in advance depending on desired arrival date, however the reservist must give advance notice as early as possible under the circumstances.
How should reservists terminate their employer?The notification can be made in writing or orally. However, if possible, written notification is preferable. The notice may be informal and need not follow any particular format. However, reservists may prefer to deliver the notice via email or other means to create a time-stamped record. This can be done in addition to a verbal notification. See20 C.F.R. § 1002.85.
A sample notification letter can be found in the Other Information tile of the DTS Responder Portal. Reservists can complete this document and present it to their employers along with a copy of their DTS application.
Does a reservist need permission from their employer before accepting a deployment request?
No. Reservists do not need to obtain permission from their employer. Only notification is required. You can accept the assignment request upon receipt and then notify your employer as soon as possible. See20 C.F.R. § 1002.87.
Does a reservist have to plan or accept assignments according to the needs of his employer?
No. The reservist has no obligation to consider his employer's interests or concerns regarding the timing, frequency, or duration of FEMA duty. The employer cannot refuse to reinstate the employee because he considers that the timing, frequency or duration of the employment is inappropriate. See20 C.F.R. § 1002.104.
Can a reservist be required to take leave for an assignment?No. The employer may not require the reservist to use vacation, annual vacation or similar vacation accumulated during an assignment. See20 C.F.R. § 1002.153
How long can a reservist be deployed?
There are no specific duration limitations associated with USERRA Reemployment Protection. However, USERRA reinstatement rights do not apply if cumulative service during the reservist's employment with a single employer exceeds five years. See20 C.F.R. § 1002.99
Reservists must continue to follow all FEMA tenure guidelines (e.g., 50-week rule).
Can reservists rotate during their deployment?
Reservists can take rotations, sick leave and federal holidays while maintaining USERRA protection for the deployment. Reservists must follow all applicable FEMA guidelines.
Does USERRA give reservists the right to keep their civilian employer benefits while on assignment?
Yes, the health and pension insurance coverage for reservists is covered by USERRA. People who are on assignment longer than 30 days can choose to continue with employer-sponsored healthcare for up to 24 months. However, they may be required to pay up to 102% of the full premium. For assignments of less than 31 days, health insurance coverage exists as if the reservist were still employed. See 20 C.F.R. Section 1002.164 and Section 1002.166.USERRA pension protection applies to defined benefit plans and defined contribution plans and plans provided under federal or state laws governing retirement benefits for government employees. For purposes of retirement plan participation, vesting, and benefit accumulation, USERRA treats reservists as continuous service with the employer. See20 C.F.R. § 1002.149, § 1002.259And§ 1002.260.
When does a reservist have to notify his employer that he is returning to work?
It depends on the duration of the assignment, which can also include rotations. See 20 C.F.R. § 1002.115.
- When deployed for 30 days or less, the reservist must return at the beginning of the next regular duty period on the first full day after the end of the deployment, allowing for safe travel home and an eight-hour rest period.
- If deployed for 31 to 180 days, the reservist must apply for reinstatement within 14 days of the end of the deployment.
- If the assignment is longer than 181 days, an application for reinstatement must be submitted within 90 days of the end of the assignment.
A request for reinstatement does not have to follow any particular format. The reservist can apply verbally or in writing. The application should state that the reservist is a former employee who has returned from a deployment and that he or she is seeking re-employment with the former employer. See20 C.F.R. § 1002.118.
Must a Reservist notify their employer that they intend to seek reinstatement after their deployment is complete before leaving to perform FEMA service?
No. If the reservist resigns to begin a term of service, he or she is not required to notify the civilian employer that he or she intends to seek reinstatement upon termination of FEMA service. See20 C.F.R. § 1002.88.
Can an employer request proof of the deployment of a reservist?
Yes, if deployment took longer than 30 days. See 20 C.F.R. § 1002.121. Upon request, the reservist must provide documentation proving the following:
- the request for reinstatement was timely;
- the employee has not exceeded five years of service, subject to any exceptions; And
- The employee's separation or dismissal from service was not disqualifying.
The following documents should suffice: Copies of their FEMA earnings and vacation stubs from their MyEPP accounts or a copy of their employment history from their DTS account.
If employers want to verify information about an employee's assignment, they can send an emailFEMA-CREW-Act@fema.dhs.govwith the responder's name and incident number. FEMA only verifies the following: the responder is a FEMA reservist, the start date of the assignment, and the end date of the assignment (if an assignment is completed).
What happens if a reservist thinks their employer isn't respecting their USERRA protection?
If a Reservist is having trouble enforcing their rights and protections under USERRA, they should visit the Department of Labor Veterans' Employment & Training Service's USERRA website:http://www.dol.gov/vets/programs/userraand/or call the toll-free information and helpline available 8:00 a.m. to 8:00 p.m. Eastern Time at 1-866-4-USA-DOL (1-866-487-2365). The Website contains links to DOL's Laws, Regulations and USERRA Guide which provide further details on these subjects. See20 C.F.R. § 1002.288.
Reservists may also initiate private lawsuits in court to enforce their USERRA rights. A reservist is not required to use VETS if he chooses not to. See20 C.F.R. § 1002.288And§ 1002.303.
Reservists who have questions about how the CREW Act affects their deployment, please emailFEMA-CREW-Act@fema.dhs.gov.
For more detailed information on USERRA's rights and protections, visit the DOL website (Know Your Rights | US Department of Labor (dol.gov)).